See Also: Steering an Elephant | Peer to Peer Review

Duke Scholarly Communications Director Kevin Smith discusses the HathiTrust case for LJ’s Academic Newswire just hours before judge Baer’s ruling on Wednesday.

The Honorable Harold Baer, Jr., on Wednesday held that the HathiTrust’s mass digitization is fair use, in spite of the challenges raised in a lawsuit by the Authors Guild and others, both associations and individual authors. Crucial to his reading of the case is Baer’s rejection of the plaintiff’s theory that section 108 of the copyright law prevents libraries claiming fair use as a defense.

Baer, who is District Judge in the United States District Court Southern District of New York, said in his opinion, “I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ … and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the [Americans with Disabilities Act].”

Baer was not persuaded that preservation is in itself a transformative use. However, he said, “the use to which the works in the HDL are put is transformative because the copies serve an entirely different purpose than the original works,” e.g., search rather than actual access. (And he points out that such search capabilities have given rise to entirely new uses, like text mining.)

He also held that facilitating access for print-disabled persons is transformative—and that even if it weren’t, it is in and of itself fair use.

Baer rejected the argument that the use is commercial, since buying more copies wouldn’t help with search or with providing access to the blind, or that it caused market harm, since no viable market exists nor are there plans to develop one.

Potentially bearing on similar future suits, the judge also held that the Guild and other U.S. associational plaintiffs don’t have standing under the copyright act, though the foreign associations might because that’s determined by foreign law.

Baer punted on the Orphan Works question, on the grounds that the original Orphan Works program has been abandoned, and said he can’t rule on one that may or may not come to exist in the future until he knows how it will work.

The case also doesn’t address the question of whether Google’s own use of the scans it made is legal: it addresses only the HathiTrust’s. The former is the subject of a separate lawsuit which is still ongoing, at least for now. Professor James Grimmelmann of New York Law School thinks this opinion may change that: “Perhaps together with the AAP settlement, this is a moment for a reevaluation of the Authors Guild’s suit against Google. My estimate of the likelihood of settlement just went up substantially,” he wrote on his blog. On Twitter, Grimmelman added, “Unless the [Authors Guild] can undo the statutory standing holding, it’ll be precluded from bringing future copyright suits on behalf of members,” as it has done in the cases against HathiTrust and Google.

Meanwhile, the Library Copyright Alliance, which includes the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries, welcomed the ruling, saying “Judge Baer ‘s ruling not only allows HathiTrust to continue serving scholars and the print disabled, but it also provides helpful guidance on how future library services can comply with copyright law.”

The National Federation for the Blind also hailed the verdict. Dr. Marc Maurer, president of the federation, said the decision “will revolutionize access to books for the blind.”

Technology law and policy expert Jonathan Band told LJ, “The judge made clear that he thought that many of the Authors Guild’s arguments bordered on the frivolous. That makes it likely that the judge will award HathiTrust and the National Federation of the Blind their attorneys’ fees. Remember the court ordering the publishers to pay $2.8 million in attorneys’ fees to Georgia State University? If I were the Authors Guild’s counsel, I’d advise it to try to cut its losses by reaching an agreement with HathiTrust under which the Authors Guild would not appeal the case in exchange for Hathi not seeking attorneys’ fees. Moreover, since the judge didn’t view this as even a close case, the Authors Guild should be giving serious thought to settling with Google. It certainly shouldn’t want to have to pay Google’s attorneys’ fees, too!”

Brad Wheeler, Indiana University Vice President for IT & CIO and a HathiTrust board member, told LJ, “IU is delighted with Judge Baer’s ruling.  Since inception, HathiTrust has labored to be a pioneering, essential, and compliant work among its members.  We are grateful for the excellent collaboration among all of the institutions and the NFB along with theorganizations that filed Amicus briefs.”

John Price Wilkin, executive director of the HathiTrust, told LJ, “From the beginning, this was about the mission of libraries, and especially our ability to preserve the cultural record, our right to support users with print disabilities, and our support of fair use in services like discovery.  The ruling is a vindication not only of our right to do those things but of the way we were doing them–responsibly and lawfully.” The Author’s Guild did not immediately respond to LJ‘s request for comment.

—Meredith Schwartz, News Editor, LJ

UPDATED (10/12/12) More statements and coverage of the decision:

Authors Guild Statement

We disagree with nearly every aspect of the court’s ruling. We’re especially disappointed that the court refused to address the universities’ “orphan works” program, which defendants have repeatedly promised to revive. A year ago, the University of Michigan and other defendants were poised to release their first wave of copyright-protected, digitized books to hundreds of thousands of students and faculty members in several states. The universities had deemed the authors of these books to be unfindable.

Within two days of filing our lawsuit last September, Authors Guild members and staff found that the “orphans” included books that were still in print, books by living authors, books whose rights had been left to educational and charitable institutions in the U.S. and abroad, books represented by literary agents, and books by recently deceased authors whose heirs were easily locatable.

“The so-called orphan works program was quickly shown to be a haphazard mess, prompting Michigan to suspend it,” said Paul Aiken, the Guild’s executive director. “But the temptation to find reasons to release these digitized books clearly remains strong, and the university has consistently pledged to reinstate the orphan works program. The court’s decision leaves authors around the world at risk of having their literary works distributed without legal authority or oversight.”

We’ll be discussing the decision with our colleagues and co-plaintiffs in Europe, Canada, and Australia and expect to announce our next steps shortly.

Read the Complete Statement

HathiTrust: Official Statement on Court Decision

Paul Courant, University Librarian and Dean of Libraries, says the judge’s decision affirms the digitization program initiated in partnership with Google in 2004, as well as the work of HathiTrust, the library consortium created in 2008 to realize the full potential of library digitized collections. HathiTrust comprises 70 research libraries, and holds more than 10.5 million volumes, the majority of which are in-copyright.

“It’s a great day for the library, and for libraries,” Courant says. “Our partnership with Google has preserved the bulk of our print collection, as well as rendering it discoverable, searchable, and accessible to readers who have print disabilities. And now we know that the benefits of this work will be sustained for the generations to come.”

According to John Wilkin, Executive Director of HathiTrust, “This is a win for every one of the HathiTrust affiliate institutions, and for all libraries.” He says that the decision will likely advance certain HathiTrust initiatives, such as access for affiliated users who have print disabilities, and the use of the digital library for text mining and computational research.

Read the Complete Statement

“HathiTrust Wins” (by James Grimmelmann, The Laboratorium) “Court Rules on HathiTrust and Fair Use” (by Ken Crews, Columbia U. Libraries, Copyright Advisory Office) “U’ wins copyright lawsuit against Hathitrust digitalization project” (The Michigan Daily) “Author’s Guild v Hathi Trust: A Win for Copyright’s Public Interest Purpose” (by Nancy Sims, Copyright Librarian) “A big win for fair use and libraries” (by Kevin Smith, Duke University Libraries) Library Copyright Alliance Comments on Authors Guild v. HathiTrust Decision Favorable Ruling in HathiTrust Fair-Use Case a Big Win for CIC Universities (Committee on Institutional Cooperation)

The full text of the 23 page ruling is below.

From the Opinion of the Hon. Harold Baer, Jr., District Judge

Before the Court are two motions for judgment on the pleadings and three motions for summary judgment. Defendants include HathiTrust; Mary Sue Coleman, President of the University of Michigan (“UM”); Mark G. Yudof, President of the University of California; Kevin Reilly, President of the University of Wisconsin System; Michael McRobbie, President of Indiana University; and Cornell University (collectively, the “Universities”). Plaintiffs, consisting of individuals and associational organizations, assert claims for copyright infringement for the alleged unauthorized reproduction and distribution of books owned by the Universities. The individual plaintiffs are Trond Andreassen, Pat Cummings, Erik Grundström, Angelo Loukakis, Helge Rønning, Roxana Robinson, André Roy, Jack R. Salamanca, James Shapiro, Danièle Simpson, T.J.Stiles, and Fay Welson, and the associational organizations are The Authors Guild, Inc. (“Authors Guild”), The Australian Society of Authors Limited, Authors’ Licensing and Collecting Society (“ALCS”), Union des Écrivaines et des Écrivains Quebecois (“UNEQ”), Sveriges Författarförbund (“SFF”), Norsk Faglitterær Forfatter-og Oversetterforening (“NFF”), and The Writers’ Union of Canada (“TWUC”) (collectively, “Associational Plaintiffs”). The Authors League Fund (“Authors’ Fund”) does not seek associational standing, but asserts a claim based on its direct ownership of copyrights. I granted the motion to intervene as defendants by the National Federation of the Blind, Georgina Kleege, Blair Seidlitz, and Courtney Wheeler (collectively, “Defendant Intervenors”) on consent in January 2012. Defendants’ motion for judgment on the pleadings, filed in December 2011, seeks the dismissal of the Associational Plaintiffs on standing grounds to the extent they asserted the rights of their members and sought dismissal of claims involving the Orphan Works Project (“OWP”) as not ripe for adjudication.

For the reasons set forth below, Defendants’ motion for judgment on the pleadings is GRANTED in part and DENIED in part. Plaintiffs’ motion for judgment on thepleadings insofar as it seeks a ruling that fair use and other defenses are unavailable to theDefendants as a matter of law is DENIED. In June 2012, Defendants, Defendant Intervenors and Plaintiffs each filed motions for summary judgment. Defendants’ and Defendant Intervenors’ motions for summary judgment are GRANTED, and Plaintiffs’ motion for summary judgment is DENIED.

Also before the Court are two unopposed motions for leave to file briefs as amici, brought by the American Library Association, Association of College and Research Libraries, and Association of Research Libraries (the “Library Amici”), and the Digital Humanities and Law Scholars (the “Digital Humanities Amicus”). Both motions are GRANTED.

Ag v Ht Opinion